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English Criminal Law/temporary

< English Criminal Law

This book was started for use by anyone wishing to gain background knowledge of criminal law or indeed anyone who is studying criminal law. It is aimed at an A-Level audience, who have prior knowledge of the legal system, to provide a light read along with some of the more precise & heavy books available.

This book uses several conventions which are assumed to be known to the intended audience of this book.

What constitutes a Crime

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The layman's answer would be something along the lines of actions that are in opposition to the laws (statutes) that govern the country. Law students who begin their studies in Criminal Law will grow to realise that a "crime" constitutes many facets which go beyond the "bad act" itself (the actus reus). In looking at whether a person is a "criminal", one has to look at the mental state the person had while committing the crime(his "mens rea"). It would be worthwhile to remember that every person charged with a crime is presumed innocent until proven guilty.

Basic Principles of Criminal Law

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Procedural Issues

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Criminal law is based on the theory that the defendant is innocent until proven guilty. In the England and Wales it is the job of the Crown Prosecution Service (CPS) to prove the guilt of the accused in most cases. It is the job of the defendant's solicitor or barrister to prepare and submit a defence. This is done in court by testing the strength of the evidence against the defendant using methods such as discrediting witnesses or challenging the legality of evidence e.g. a stop and search carried out by a police constable was not lawful according to the rules under section 2 of the Police and Criminal Evidence Act 1984. The court must be satisfied that the defendant is guilty beyond reasonable doubt before a conviction can be achieved. All of these elements are derived from the Rule of Law which exists to protect personal liberty, an idea originally conceived by Dicey.

It is obvious to see that in theory, if not entirely in practice, it is hard for the accused to be convicted of a crime; more importantly a crime that the accused did not himself commit. This may seem weighted too far on the side of the accused. However, it is answered by a basic principle of English criminal law: "it is better to release five criminals than it is to convict one innocent".

Actus Reus & Mens Rea

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Introduction

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In order to establish whether a criminal offence has been committed, we must first establish what the components (often known as "elements") of that offence are. As an example, Theft is defined in s. 1 Theft Act 1968: A man shall be guilty of theft if he dishonestly appropriates property belonging to another, with the intention to permanently deprive the other of it, and thief and steal shall be construed accordingly." We can distinguish five elements to this offence: (1) dishonesty, (2) appropriation, (3) property, (4) belonging to another, and (5) intention to permanently deprive. All five of these elements must be present at the same time (see below) for the offence to be committed.

Every element of an offence falls into one of two categories: actus reus (latin for "guilty act") and mens rea (Latin for "guilty mind"). Most criminal offences contain both actus reus and mens rea elements. These are known as crimes with fault liability. Other offences, known as strict liability, require no guilty mind, or mens rea element. In these cases, the crime is committed simply by commission of the act. An example of a strict liability offence would be driving without valid insurance.

A crime can only be committed where both actus reus and mens rea occur at the same time. In some circumstances, this rule has been widely interpreted to include offences which the law is clearly intended to protect against. Thus in Fagan v. Metropolitan Police Commissioner, when the defendant parked his car on the foot of a traffic policeman by accident, he could not be found guilty of a crime, since he did not have the requisite mens rea at the same time as the actus reus. However, the court interpreted his failure to move the car as a 'continuing' act, which coincided with his knowledge and therefore intention to harm the policeman. Fagan was thus guilty of a crime.

Strict Liability

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Sometimes the legislature departs from the maxim actus non facit reum nisi mens sit rea by creating offences of strict liability. The liability is said to be ‘strict’ when there is no mens rea requirement in relation to one or more elements of the actus reus. For example, under the Sexual Offences Act 2003 the offences involving children under 13 do not require any mens rea on the part of the defendant as to the age of the child (R v. G [2006] 2 Cr App R 17). Here the prosecution needs only to prove that the defendant intentionally committed the relevant acts and that the victim was under 13; his genuine or otherwise reasonable belief that the child was older is irrelevant.

In English law most strict liability offences are statutory, with few common law exceptions such as contempt of the court and criminal libel.

Complicity

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The Criminal Liability of Corporations

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Corporate criminal liability occurs either through direct liability or vicarious liability.Direct liability needs a directing mind and will. Direct liability tends to focus on more serious offences requiring the establishment of mens rea, including secondary offences of aiding and abetting, counselling and procuring. Vicarious liability occurs on the basis of 'respondeat superior' or 'let the master answer'.

The recent statute enacted on July 26, 2007 , Corporate Manslaughter and Corporate Homicide Act v2007, is the criminalisation of corporate liability, especially with regard to health and safety offences.An organisation will be guilty of an offence if the way in which its activities are managed or organised causes a person's death, and amounts to a gross breach of a relevant duty of care owed by the organisation to the deceased.


The new Act brings in tough penalties for companies causing deaths of workers by negligent management in industry, or fatalities and injuries to passengers in public transport. Deaths in prison and police cells is part of the new corporate manslaughter measures and organisations such as the Police Authority are classed as corporations.

Before the Corporate Manslaughter and Corporate Homicide Act 2007, there have been cases in the UK courts in which the issue of criminal liability of companies were decided upon. One such case is as follows:


Tesco Supermarkets Ltd v Nattrass (1972) HL

The appellant company was charged with an offence under the trade descriptions legislation of displaying inaccurate price information in one of its stores. The company was convicted and fined but appealed on the basis that the company had not committed the offence - it had in place a management and supervisory system designed to prevent this type of offence and the failure that resulted in the offence being committed was the failure of the store supervisor, which should not be attributed to the company. Held The appeal succeeded. Because the store supervisory manager could not be said to be part of the ‘directing mind and will’ of the company his acts could not be said to be those of the company. The House of Lords stressed the fictional nature of the corporate legal person and the need to distinguish between: acts which were actually those of the company; and acts which were those of an agent or servant of the company but for which the company has some statutory or vicarious liability. The former category are usually those acts committed by the board of directors or senior management of a company who speak and act for it. They are its ‘brain’ or its ‘nerve centre’.

Inchoate Offences

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Specific Offences

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Murder

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The crime of murder is committed where a person of sound mind and discretion unlawfully kills any reasonable creature in being, and under the queens peace, with intent unlawfully to kill or cause grevious bodily harm.

Voluntary Manslaughter

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There are three kinds of voluntary manslaughter. They are provocation, diminished responsibility and suicide pacts. Voluntary manslaughter is essentially a defence to murder. A person cannot be charged with voluntary manslaughter, they have to be charged with murder and then raise one of these defences, which reduces the crime to manslaughter. In the case of provocation, the requirement is that the person was provoked by words or conduct, and that the provocation would have provoked a reasonable person to do the same. The requirement for diminished responsibility is that the defendant was operating under such abnormality of mind as substantially impaired his mental responsibility for his acts and omissions in committing or being party to a killing. The defence that the killing was a suicide pact requires that the defendant was a party to a suicide pact, and that they killed the victim in pursuance to that suicide pact. A suicide pact is an agreement between two or more people, having for its object the death of them all, whether or not each is to take his own life. Nothing may be treated as being done in pursuance of a suicide pact, unless when done the person doing the act has the settled intention of dying in pursuance of the pact.

Involuntary Manslaughter

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In common law the term ‘involuntary manslaughter’ refers to those instances where the defendant causes death intending neither to kill nor to cause grievous bodily harm. There are currently three types of involuntary manslaughter - manslaughter by gross negligence, constructive manslaughter and killing with subjective recklessness

  1. Constructive manslaughter

The defendant must have committed an illegal act that resulted in the death of the victim

    1. Gross Negligence Manslaughter

Must owe a duty of care to the victim.

Non-Fatal Offences Against the Person

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Assault- causing the victim to apprehend immediate unlawful force R v Ireland and Barstow (Section 39 of the criminal justice act '88)

Battery- the application of unlawful force, which can be any touching the victim does not consent to- R v Thomas (Section 39 of the criminal justice act '88)

Assault occasioning Actual Bodily Harm- any assault or battery which amounts to ABH. This can be psychriatric and physical. Physical ABH must be more than trivial damage, and psychriatric ABH must be more than mere fear and distress, and was defining in the case Chan Fook as 'any injury not so trivial as to be wholly insignificant'. (Section 47 of the Offences Against a Persons Act 1861)

Malicious wounding or causing grevious bodily harm (Section 20 of the Offences Against a Persons Act 1861)

Malicious wounding or inflicting grevious bodily harm with intent (Section 18 of the Offences Against a Persons Act 1861)

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Online resources

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